Legal traditions and constitutional interpretation of bills of rights in Africa : comparative perspectives from the Constitutional Courts of Benin, the Democratic Republic of Congo and South Africa

Abstract

As a result of frequent and flagrant human rights violations by most post-independence African regimes (particularly before the 1990s), the new or substantially revised post-1990 African constitutions entrenched fundamental rights and freedoms. The constitutions of Benin, the Democratic Republic of Congo (DRC) and South Africa established constitutional courts with mandates, inter alia, to deal with any disputes involving the violation of these fundamental human rights. Over the last three decades, the constitutional courts of these three countries have produced a considerable body of human rights jurisprudence that has begun to show that legislation and conduct hostile to human rights cannot be tolerated. This study undertakes a comparative appraisal of the extent to which differences between the common law and civil law legal traditions – on which the design of constitutional courts and the recognition of human rights in Benin, the DRC, and South Africa are based – influence the constitutional interpretation of fundamental rights and the possible implications these have for the promotion of a human rights culture. Three decades after the revival of constitutionalism and concerted attempts to protect fundamental human rights in Africa, it is important to assess whether constitutional jurisdictions established to promote and protect the constitutional order against the attacks that were commonplace before 1990s have used their human rights mandate in a progressive and transformative way such that state and non-state actors respect human rights and constitutionalism. Constitutional courts are increasingly imposing limitations on the exercise of political powers and are being used by some individuals to challenge the despotic tendencies of those who undermine the transformative human rights ideals contained in the constitutions of Benin, the DRC and South Africa. This study is primarily comparative in its methodology. It begins by examining possible influences on the nature, scope, and constitutional interpretation of African bills of rights; it then examines the background and approaches to bills of rights in the three countries. In three subsequent chapters, the study critically investigates the quality of the interpretation of equality and non-discrimination, fair trial, and political rights provisions of the constitutions of these three countries in cases brought before their Constitutional Courts. This is followed by a chapter that provides a comparative overview of trends, developments and lessons from the three constitutional courts. In conclusion, the study argues that although differences between the common law and civil law legal traditions significantly influence approaches to bills of rights and the interpretation of human rights by the three constitutional courts, these courts have the potential to improve the quality of their interpretations and learn from each other. More specifically, it is contended that many African countries, especially those operating under the civil law tradition, can learn much from the experience of the South African Constitutional Court.